complained instruction in Kentucky

1964Brown v. Hoblitzell, Ky., 307 S.W.2d 739 .

1943As illustrating counsels’ argument, it is stated in brief that “and also no requirement in the instruction that appellee should have lost any certain amount of time,” when, as we have said, the instruction did contain such a requirement, by the employment of the words “if any.” In support of the argument of counsel the ease of liarían Fruit Company *278 v. Kilbourne, 280 Ky. 511 , 133 S. W. (2d) 730, 731 , is relied on.

1943As illustrating counsels’ argument, it is stated in brief that “and also no requirement in the instruction that appellee should have lost any certain amount of time,” when, as we have said, the instruction did contain such a requirement, by the employment of the words “if any.” In support of the argument of counsel the ease of liarían Fruit Company *278 v. Kilbourne, 280 Ky. 511 , 133 S. W. (2d) 730, 731 , is relied on.

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1936Such an instruction, as well as such prima facie effect only of the excess speed limits, was condemned by us in the recent cases of Wight v. Rose, 209 Ky. 803 , 273 S. W. 472 ; Utilities Appliance Co. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 ; Dia *412 mond Taxicab Co. v. McDaniel, 258 Ky. 478 , 80 S. W. (2d) 562 ; Hunt v. Whitlock’s Adm’r, 259 Ky. 286 , 82 S. W. (2d) 364 , and many other prior ones cited in those opinions. iSo that, in the respects indicated, under our designations of (a) and (b), supra, the complained of instruction Was faulty in that it violated the rules of practic

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1935The reasons we have given why such testimony could not be regarded as prejudicial, conceding it to be incompetent, are so conclusive as to require the citation of no authority in support of them, but similar situations appeared and were similarly disposed of in the cases of Tester v. Commonwealth, 229 Ky. 403 , 17 S. W. (2d) 260 , Marcum v. Commonwealth, 201 Ky. 527 , 257 S. W. 714 , and Barton v. Commonwealth, 247 Ky. 133 , 56 S. W. (2d) 715 .

1933We are, however, of the opinion that appellant’s contentions in this are not to be sustained, as the action of the court, in giving the complained of instruction on “aiding and abetting,” cannot here be considered as prejudicial to the appellant, in that the jury, it is clear, did not thereunder convict the appellant for aiding and abetting Luttrell in the killing of decedent, in that, by the positive statement of its verdict, it expressly found appellant guilty of murder by “stabbing with a knife and not by shooting Charley Fox.” The question here raised upon this objection, alleging as erron

1933We are, however, of the opinion that appellant’s contentions in this are not to be sustained, as the action of the court, in giving the complained of instruction on “aiding and abetting,” cannot here be considered as prejudicial to the appellant, in that the jury, it is clear, did not thereunder convict the appellant for aiding and abetting Luttrell in the killing of decedent, in that, by the positive statement of its verdict, it expressly found appellant guilty of murder by “stabbing with a knife and not by shooting Charley Fox.” The question here raised upon this objection, alleging as erron

1933We are, however, of the opinion that appellant’s contentions in this are not to be sustained, as the action of the court, in giving the complained of instruction on “aiding and abetting,” cannot here be considered as prejudicial to the appellant, in that the jury, it is clear, did not thereunder convict the appellant for aiding and abetting Luttrell in the killing of decedent, in that, by the positive statement of its verdict, it expressly found appellant guilty of murder by “stabbing with a knife and not by shooting Charley Fox.” The question here raised upon this objection, alleging as erron

1933We are, however, of the opinion that appellant’s contentions in this are not to be sustained, as the action of the court, in giving the complained of instruction on “aiding and abetting,” cannot here be considered as prejudicial to the appellant, in that the jury, it is clear, did not thereunder convict the appellant for aiding and abetting Luttrell in the killing of decedent, in that, by the positive statement of its verdict, it expressly found appellant guilty of murder by “stabbing with a knife and not by shooting Charley Fox.” The question here raised upon this objection, alleging as erron

1933However, we are yet unable to find from our examination of the record where the instruction, even if here.uncalled for, was prejudicial to appellant’s substantial rights upon the trial, in view of the jury’s verdict expressly stating that they found the appellant guilty of murder “by stabbing with a knife and not by shooting Charley Fox.” *474 A like question to the one here presented was raised and answered in the case of Mullett v. Commonwealth, 233 Ky. 785 , 26 S. W. (2d) 46, 47 , where the court, holding it untenable, said: “The last ground relates to erroneous instructions, and, under thi

1933However, we are yet unable to find from our examination of the record where the instruction, even if here.uncalled for, was prejudicial to appellant’s substantial rights upon the trial, in view of the jury’s verdict expressly stating that they found the appellant guilty of murder “by stabbing with a knife and not by shooting Charley Fox.” *474 A like question to the one here presented was raised and answered in the case of Mullett v. Commonwealth, 233 Ky. 785 , 26 S. W. (2d) 46, 47 , where the court, holding it untenable, said: “The last ground relates to erroneous instructions, and, under thi

1932It authorized defendant to arrest deceased if the latter had committed an offense in his presence, and the contention here made is, that it should have gone further and authorized him to arrest deceased if he “had reasonable grounds to believe and did believe in good faith that deceased had so committed an offense,” although it might eventually turn out that none such was committed, and the cases of Easton v. Commonwealth, 82 S. W. 996 , 26 Ky. Law Rep. 960 , and Weaver v. McGovern, 122 Ky. 1 , 90 S. W. 984 , are cited in support of that argument.

1931It is not argued in brief for the commonwealth that one would be guilty of violating the statute, or of casting a vote, by merely depositing an unstamped ballot in the box, or by procuring an officer of the election to do so, nor is such a position maintainable in view of the legal definition of the word “vote.” Black’s Law Dictionary defines the word “vote” as: “The expression of his will, preference, or choice ... of a constitutency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding, or the selection of an offi

1922Sections 340 and 353 -of the Criminal Code authorize a reversal of con viction for errors committed by tbe trial court only “when, upon consideration of 'the whole case, the court (this court) is satisfied .that the substantial rights, of the defendant have been prejudiced thereby,” which is to say, that unless the defendant’s 'substantial rights have .been prejudiced by the complained of error a reversal should not be ordered; and we have followed that interpretation of tbe .sections in a number of cases, among which is the recent one of Sweazy v. Commonwealth, 193 Ky. 1 , but in that opinion

1922In the case of Skaggs v. Commonwealth, 196 Ky. 399 , the same error, committed by the same court, was under consideration and the practice of adding the objectionable language to the instruction was again condemned, but for the same reason herein stated the judgment was affirmed.

1870(Slater v. Sherman, 5 Bush, 206 .) It is further objected that the court erred in admitting proof of the ages and number of Mahony’s children made orphans by his death; but, in our opinion, the evidence was admissible both because, the object of the statute conferring the right of action being compensatory as well as punitive, the condition of the family of the deceased, bereaved by his death, directly and essentially affected the question of damages, and because the action was of that peculiar kind in which all attendant circumstances of aggravation which go to characterize the wrong complain